General legal framework

AuthorOuhnaoui, Hania; Bribosia, Emmanuelle; Navasartian, Areg; Rorive, Isabelle
Constitutional provisions on protection against discrimination and the promotion
of equality
The constitution of Belgium includes two main articles regarding non-discrimination.
Articles 10 and 11 guarantee equality before the law and enjoyment without discrimination
of the rights and freedoms accorded to all, without specifying a list of prohibited grounds
of discrimination. These equality clauses are of general application, without any restriction
as to the grounds on which the discrimination is based (they require the principle of
equality to be respected in relation to all grounds). There has been case law with respect
to the discriminatory grounds of the equality directives.
These provisions apply to all areas covered by the directives. Their material scope is
broader than those of the directives. They are applicable to all contexts, going beyond not
only employment and occupation, but also the scope of Directive 2000/43/EC.
The constitutional anti-discrimination provisions are directly applicable. Their main
importance lies in the fact that legislative norms adopted either by the Federal state
(Lois/Wetten) or by the regions or communities (Décrets/Decreten or
Ordonnances/Ordonnanties), and regulations adopted by the different Governments
(Arrêtés royaux/Koninklijke besluiten when adopted by the federal Government, Arrêtés
du gouvernement de la Région/Besluiten van de regering when adopted by the
Governments of the regions), must respect the constitutional principle of equality. Respect
for the constitutional principles of equality and non-discrimination is ensured by the power
accorded to every person with a legal interest to seek the annulment of a statutory law or
an executive regulation, respectively, before the Constitutional Court or the Council of
State (Conseil d’Etat/Raad van State Supreme Administrative Court). Moreover, if a
jurisdiction entertains doubts as to the compatibility of a legislative norm (federal act or
decree), it may submit the question to the Constitutional Court by a referral procedure,
and the Court may then consider a piece of legislation invalid if it is found to violate the
constitutional principles of equality and non-discrimination.
These provisions can be enforced against private individuals (as well as against the state).
However, because of their very general formulation and the lack of a general horizontal
effect in the field of private relationships, these clauses are not used in pratice to protect
an individual from private acts of discrimination by an employer or another private person.

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